Vol. 79, No. 8 August
McElhaney's Trial Notebook, 4th Edition
By James W. McElhaney (Chicago, IL: ABA Litigation Section,
2005). 792 pgs. $64.95. Order, (800) 285-2221.
Reviewed by Jason J. Hanson
This is the book version of the Trial Notebook series in the
ABA's Litigation magazine. Readers familiar with that series
will recognize the setting - each chapter begins with a frustrated
lawyer meeting with "Angus," the expert litigator, to discuss a trial
advocacy or evidence problem, while the author listens in and pens a
piece based on Angus's advice. Angus usually provides a list of
suggestions, then the author expands on the suggestions by going through
the pertinent law and some examples.
The book has a lot of great information and advice. For many
evidentiary rules, it provides a historical context, the appropriate
provisions of the Federal Rules of Evidence, and examples of variations
on the rule in particular states. It also provides examples of effective
uses for each rule, including some that are not so obvious. Advice on
effective advocacy at various stages of litigation is found throughout
the book, sometimes as an individual chapter devoted to a particular
topic (for instance, "Final Argument"), other times within a discussion
of a particular rule of evidence. This overlapping approach means that
it is difficult to miss a point, because it is raised wherever
appropriate. However, reading the book from beginning to end can be
tedious, because the overlapping approach necessarily raises the same
examples several times.
If you like Angus's advice in the Trial Notebook series, and
the conversational approach to such topics, you'll like this book. If
you need a refresher on cross-examination skills, for instance, reading
the six chapters on cross-examination will help bring you back up to
speed. For that sort of situation, the book is a valuable resource.
David Ball on Damages - The
Essential Update: A Plaintiff's Attorney's Guide for Personal Injury and
Wrongful Death Cases
By David Ball, Ph.D. (Notre Dame, IN: NITA, 2005). 400 pgs.
$85. Order, (800) 225-6482.
Reviewed by John A. Kornak
There are few books that are essential for attorneys to possess. This
is one of them. Not all attorneys will benefit from this book. In fact,
it has a relatively small target audience - plaintiff's personal injury
lawyers, although the author invites defense attorneys to eavesdrop. For
those of us who maintain a plaintiff's personal injury practice, this
book is a must-have.
David Ball is a nationally recognized jury consultant, with expertise
in the area of damages. This book is an update from the first edition of
David Ball on Damages. The first edition was worth reading.
This second edition is worth reading, digesting, and keeping handy for
frequent review. It is that good.
The basic tenet of this book is found right at the beginning. Just
after the introduction is a sign, meant to be cut out and pasted where
the trial lawyer can view it every day. It says: "The only goal of trial
is to get money for your client." Truer words (at least in the
litigation context) have never been written.
Those of us who try personal injury cases recognize that damages are
sometimes an afterthought. At times we are so caught up in proving
negligence, that we might sacrifice the most important part of our case.
This book focuses the trial attorney on how to make damages the central
theme in all phases of each trial.
The heart of the book, chapters five through nine, deals with
effectively handling damages from voir dire through closing argument.
Particularly helpful is the "preponderance technique" that Ball
introduces in chapter five. Getting jurors to understand that the
preponderance standard applies to damages as much as it does to
negligence is an important concept for trial lawyers to grasp. This book
offers tips on how to get this concept through to jurors early and
There is a chapter dealing with juror motivations to give monetary
compensation and another dealing with their motivations for not giving
compensation. Both chapters are chock full of important information.
Both chapters need to be read and reread by anyone trying a personal
Not to say that this book is perfect. There are certain suggestions
that the reader should use only with caution. For instance, Ball
suggests an "aggressive" argument on closing to make the defendant face
responsibility. His proposed argument is:
"If you decide on less (damages than suggested), then after you've
announced your verdict, when you are walking through the parking lot to
your car to go home, you will see that defendant and those lawyers
congratulating each other for having permanently escaped
An effective argument, maybe, but one that will likely draw an
objection and be sustained. The only criticism one can level at Ball is
that sometimes his suggestions are more consultant oriented than law
Despite the fact that some of Ball's suggestions must be taken with a
grain of salt, this is an excellent book on an issue of great importance
to plaintiff's personal injury lawyers. I highly recommend it.
Lowering the Bar: Lawyer
Jokes & Legal Culture
By Marc Galanter (Madison, WI: Wisconsin Press, 2005). 430 pgs.
$45. Order, www.wisc.edu/wisconsinpress
Reviewed by Tom Shriner
You've got this problem, see? You love lawyer jokes. You've collected
them for years. You'd really like to publish your collection.
But you've got another problem. You're a distinguished law professor,
and writing a joke book just won't do. Infra dig. and all that.
Besides, it's hard to get an NSF grant to write a joke book.
So you spend a couple of years, find "patterns in the jokes" (law
professors are good at that; see generations of casebooks
classifying judges' jokes), wrap the package in sociological claptrap,
and, voila!, you get something like Marc Galanter's Lowering the
Bar: Lawyer Jokes & Legal Culture.
I'm sure that's not how this book came about. Galanter's previous
writings (he cites 17 as authorities for this one) prove that he's
serious about this stuff. He has written about changes in lawyer
demographics, the transformation of our role, the blame assigned us for
society's ills. And now, more of the same, as seen through the lens of a
learned exegesis of lawyer jokes.
But I wish Galanter weren't so deadly serious. Back in pre-Miller
v. California days, when such things were necessary, I always
chuckled at pornographers' efforts to immunize their smut with a smidgen
of "redeeming social value." Still, a little of this sort of thing goes
a long way. No one liked it when Mom made you eat spinach to get
So, too, here. I wish I didn't have to work my way through the jargon
("The persistence of jokes is a useful indicator of enduring patterns of
sentiment because jokes are labile social productions ... neither
controlled nor supported by organizational sanctions or authoritative
text") to get to the jokes. Many of them are terrific. Have you heard
the one about the corporate lawyer and Mother Teresa?
Mercy on Trial: What it Means to Stop an
By Austin Sarat (Princeton, NJ: Princeton Univ. Press, 2005).
352 pgs. $29.95. Order, (609) 258-5714
Reviewed by Daniel P. Patrykus
Ask a fellow lawyer what the connection is between law school and the
practice of law. A chuckle is the likely response. We lawyers did,
however, learn a few things in law school. We learned the importance of
the rule of law. We were taught that awesome governmental power must be
Austin Sarat, in the very compelling and readable Mercy on Trial:
What It Means to Stop an Execution, argues that those people who
are empowered to spare life in capital cases are frighteningly
unburdened by such democratic constraints. No rules govern state
governors in the exercise of clemency. They spare whom they want for
whatever reason they want. Sarat calls this unregulated power "lawful
lawlessness" and justifiably so. We don't grant unchecked power to
government in the most mundane of matters, yet do so when life or death
is at issue.
Mercy on Trial attacks execution from an unlikely angle.
Sarat condemns the single mechanism that he says pretends to afford
merciful reprieve to the condemned - clemency. Because mercy must
address individual redemption, our current system does not qualify as
merciful. His point is that instances of clemency, which are
increasingly rare, almost uniformly involve claims of innocence or other
systemic flaws. As a result, true mercy no longer exists in the reprieve
process. And, he says, we are much the worse for it.
Sarat deftly deconstructs recent examples of clemency to illustrate
the illusion of mercy in the clemency process. He includes a
particularly scathing portrait of then Illinois Gov. George Ryan's
decidedly unmerciful motives for commuting all 167 death row sentences
In the end, Sarat concludes that the ideal of mercy is worth the risk
of lawless application. He quotes Alexander Hamilton, who noted that
without mercy, "justice would wear a countenance too sanguinary and
cruel." Well said.
Law and Criminal Justice: Emerging Issues in
the Twenty-First Century
By Christopher E. Smith, Madhavi McCall, & Cynthia Perez
McCluskey (New York, NY: Peter Lang Publishing Group, 2005).
184 pgs. $29.95. Order, (212) 647-7700.
Reviewed by Christopher L. Kuehn
The authors acknowledge that they cannot deal with all of the
possible legal and criminal justice issues that will emerge in the 21st
century; instead, they have tried to focus on six core areas of concern.
The book focuses on the U.S. Supreme Court, technology and individual
rights, corrections, capital punishment, Latinos and the law, and the
war on terrorism. The authors focus a good portion of the book on
substantiating their theories by describing in great detail the method
by which they arrived at their conclusions.
The first chapter discusses how the Rehnquist Court dealt with
criminal justice issues and juxtaposes those decisions against the
Court's decisions in non-criminal justice cases. While I found this
chapter somewhat insightful, it has become less valuable to
practitioners due to recent changes on the Court.
The technology and individual rights section gives a cursory review
of DNA technology and other identification techniques and a discussion
of tasers. The corrections section tackled many subissues such as a
growing prison population since the implementation of three strikes
laws, AIDS in prisons, and mentally ill prisoners. I would have
appreciated a more thorough discussion on geriatric prisoners and the
costs associated with them. The authors predict in this and other
chapters that the lack of expenditures for corrections, and issues of
religious-based programs that are imposed on prisons by federal
legislation, will cause future litigation. The section on capital
punishment was interesting, but not pertinent to Wisconsin
The chapter on Latinos and the law focused on a variety of issues in
Latino society. The authors demonstrate that society will grapple with
issues related to the growing Latino population in the United States,
including language-based discrimination. The authors also provided
interesting discussions on immigration and language barriers. In the
final chapter, the authors dissect the "War on Terror" cases of 2004,
specifically Rasul v. Bush, Hamdi v. Rumsfeld, and
Rumsfeld v. Padilla, which answered few questions on the power
of the executive branch in the war on terrorism.
The authors provide some insight on the various issues, but they
provide little information of practical use for lawyers.
By Jill Gilbert Welytok (Hoboken, NJ: John Wiley & Sons,
For Dummies, 2006). 384 pgs., $21.99. Order, www.dummies.com.
Reviewed by Richard A. Kranitz
The disclosure of accounting irregularities at Enron, Worldcom, and
other companies led to one of the most significant reforms of securities
laws since adoption of the Securities Act of 1933, the Sarbanes-Oxley
law (SOX for short). While SOX reformed reporting and governance
standards of public companies, and set strict standards for listed
companies, it also may have a significant impact on governance practices
generally, including for private companies and nonprofit organizations.
Because of the law's impact on officers, directors, and legal counsel,
business attorneys need to become familiar with its general
Sarbanes-Oxley for Dummies provides a lively, entertaining,
and comprehensive review of SOX and practical strategies for compliance.
It offers a readable introduction for lawyers in a book that they also
may recommend to their clients.
In 22 chapters, Sarbanes-Oxley for Dummies covers all major
requirements of the new law. After providing historical context to
understand the law's purpose, the author reviews each key provision of
SOX. Implementing SOX-compatible controls has been expensive. As a
consequence, the SEC has delayed applying some provisions to smaller
public companies. To assist readers in identifying cost-effective
solutions, the book contains several chapters discussing practical
implementation strategies, including a survey of available software
developed to streamline SOX-required controls. It also offers practical
suggestions for the operation of boards and their audit committees and
suggestions on steps to take to avoid litigation or enforcement
SOX has special significance for lawyers. It alters a fundamental
duty toward corporate clients, by imposing a duty to report substantial
noncompliance first to management, and ultimately to regulators. Lawyers
who represent public companies must become familiar with this
requirement, but all corporate lawyers would be advised to know of
Sarbanes-Oxley for Dummies provides a valuable introduction
to this significant development in the field of corporate
By Stephen B. Wiley (Largo, FL: Oasis Publishers, 2005). 88
pgs. $12.95. Order, www.heroisland.com.
Reviewed by John Nicholas Schweitzer
Stephen B. Wiley is an attorney. He also is a poet. Being an attorney
requires education, training, and certification. Being a poet is a state
Many attorneys are justifiably proud of the mastery of words that
allows them to manipulate language for a purpose, which may be either to
convey meaning or to avoid conveying meaning. Some attorneys yearn to
use their skills in other ways: to be expressive, to be imaginative, to
be creative, even to turn a phrase for its own sake. A few attorneys
long to turn their mastery of the craft of writing into art. Wiley does
Not every "poem" in his book is poetry. A few are mere exercises of
craft, in which the alliteration or the imagery or the expression of an
idea appears to be done for its own sake. More often than not, though,
Wiley succeeds in creating poetry, and there is much poetry in this slim
Hero Island consists of 88 pages and 61 poems, with lots of
white space and blank pages, wasteful, luxurious, and restful. The
shortest poem contains six lines, and the longest 37. The poetry is
written in free verse, without rhyme or regular meter. Capitalization
and punctuation often are ignored, and incomplete sentences abound. One
poem, "On Milosz's Swirling Vortex of a Destiny," is cryptic and
obscure; two others, "The Pantheon" and "Einstein Sat Quietly," seem out
of place with the others; but the rest create a pleasantly patterned
quilt of memories and images, all of which are understandable without
effort. There are no poems about the law.
As with any good literary work, the book has multiple virtues, and
different poems will resonate with different readers. The details of
going north to a cabin, in poems like "Northbound," "Opening Up,"
"Sitting in the Woods," and "Island Air," will be familiar to many
Wisconsin readers even though Wiley's compass points to Vermont. The
nature imagery, especially in the section titled "End of Summer,"
reminds us of things we may once have seen in perfect focus but have
since forgotten. The reminiscences or mini-stories engage the
imagination and create real characters and situations. In poems like
"Hay Harvest" and "Crosscut Dancing," the esoteric details of simple
tasks illuminate the craft of farmwork or lumbering.
Wiley's free verse is a good example of how words can become poetry
without rhyme or meter, by concisely presenting nuggets of observation
or even wisdom, by offering combinations of words that are pleasant to
speak or read simply for their effect on the ear, and by describing the
world in ways that celebrate the mundane while transforming it into
something bigger, something mythical or spiritual. Several poems end
with a twist of unexpected extra meaning. Wiley has a soft touch and
makes no overt attempt at profundity, but his poems touch on it. There
is no single message, but the last few poems say, "This is it. Just be.
Tend your garden well."
Business and Commercial
Litigation in Federal Courts, 2nd ed.
By Robert L. Haig, editor-in-chief and 199 authors (Eagan,
MN: WestThomson, 2005). 8 vols. CD-ROM forms. $960. Order, (800)
Reviewed by Troy D. Thompson
In an impressive undertaking sponsored by the American Bar
Association's Litigation Section, the 199 authors of this eight-volume,
nearly 9,000-page set have created an extensive resource for attorneys
practicing in federal courts. The hard bound set includes sections on
substantive law, practice and procedure, tactics and techniques,
checklists, sample pleadings, jury instructions, and more. It will be
useful to both seasoned litigators and attorneys with only limited
experience before the federal bar.
I had the pleasure of reviewing the first edition of this set for the
June 1999 Wisconsin Lawyer. Since that time, I frequently have
used the book in connection with federal and state court litigation, and
otherwise. The second edition appears to be even more useful.
The second edition carries forward the 80 chapters in the first
edition and expands on them. The second edition also adds 16 new
chapters: Case Evaluation, Discovery of Electronic Information,
Litigation Avoidance and Prevention, Techniques for Expediting and
Streamlining Litigation, Litigation Technology, Litigation Management by
Law Firms, Litigation Management by Corporations, Civility, Director and
Officer Liability, Mergers and Acquisitions, Broker-Dealer Arbitration,
Partnerships, Commercial Defamation and Disparagement, Commercial Real
Estate, Government Entity Litigation, and E-Commerce.
This publication lives up to its original foreword, which promised "a
goldmine of insights and advice about the dynamics of commercial
litigation and how to apply expert lawyering skills and techniques to
the specific case at hand." Its authors have improved upon what already
was a thorough, well-organized, and very relevant text that will
continue to serve as an important reference tool. Much of its subject
matter is equally applicable to many actions pending in state court. I
highly recommend this publication to individuals of all experience and
Obtaining Discovery Abroad, 2nd
By Antitrust Law Section (Chicago, IL: ABA Antitrust Law
Section, 2005). 361 pgs. $124. Order, (800) 285-2221.
Reviewed by Martin A. Blumenthal
This book has particular meaning to me because I recently filed a
suit in the Northern District of Illinois against a German corporation
and a Polish corporation. I therefore read this very practical manual
with my own case in mind.
We American lawyers take for granted the liberal discovery process in
the United States as described in chapter I and under the Federal Rules
of Civil Procedure as discussed in chapter II.
Many foreign countries under civil law regard the common law practice
with disdain and suspicion. Some countries will not permit
American-style discovery of their nationals even with the consent of the
However, countries in Europe, the Middle East, and South America and
even China have signed the Hague Evidence Convention, which provides
standards for discovery in those countries when a foreign civil lawsuit
is involved. The Convention is not applied uniformly; several countries
have exceptions to or different interpretations of the Convention's
The good news is, however, that Société Nationale
Industrielle Aérospatiale v. U.S. District Court, 482 U.S. 495
(1947), upheld the application of the Federal Rules of Civil Procedure's
discovery rules with respect to foreign parties within the court's
personal jurisdiction. The court also cautioned against any abuses and
admonished the district courts to extend due respect to sovereign
Obtaining Discovery Abroad contains several chapters that
are devoted to the application of the Convention to particular
countries. (Conveniently for me, Germany is one.) From an academic
standpoint, I thought it interesting to see how foreign courts treat
discovery and the very different role (active) that those judges take in
There are a few appendices with helpful information on central
authorities in the foreign countries plus a bibliography and the text of
the Hague Convention including reservations and declarations.
Medical and Legal Aspects of Neurology
By Jeffrey Wishik, M.D., J.D. (Tucson, AZ: Lawyers &
Judges Publishing Co., 2005). 346 pgs. $79. Order, (800)
Reviewed by John A. Kornak
Anyone who practices personal injury litigation will, eventually,
become involved in cases in which neurological injuries are alleged. It
is important for practitioners on both sides of the litigation fence to
familiarize themselves with the science behind these injuries. An
accurate, even-handed, and understandable source of information is
essential to investigating these mostly complex issues. Medical and
Legal Aspects of Neurology is accurate, even-handed, and
understandable. It is a good source of information and a good starting
point for a lawyer to investigate the intricacies of neurologic
There are 21 chapters in this book. Among the issues addressed are
diagnostic testing, chronic pain, somatization, symptom magnification,
traumatic brain injury, seizures, headaches, movement disorders, spine
and nerve root disorders, and the brain and higher cortical functions.
In short, a lot of information is crammed into this rather small
No book of this size can adequately address, in detail, the myriad
issues that are tackled here. For instance, the author mentions in the
chapter on traumatic brain injuries (TBIs) that "the presence of the
[epsilon] 4 allele of the apoliprotien E gene is associated with poorer
outcome after brain injury." To support this proposition, he cites to an
article published in 1999 in Neurology. The article cited does
stand for the proposition stated, but attorneys who litigate TBI cases
know that this is a very controversial area of medicine.
The author acknowledges the inherent impossibility of covering every
detail of every aspect of neurology in a one-volume work and aims to
make this book accessible to lawyers by highlighting topics likely to
have legal significance. The burden of digging deeper into the medicine
is up to the reader. After receiving this book to review, I found myself
referring to it from time to time to refresh my recollection on certain
issues. Perhaps that is the best indication of the value of this
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